RIAA Tries To Downplay Its Role In The Feds' Unjustifiable Censorship Of Dajaz1

from the that's-prompt? dept

Last week, we had the story about the unsealing of the court records in the Dajaz1.com case. That revealed that the main reason why the feds (almost certainly illegally) held onto the domain name for over a year was that ICE had asked the RIAA for the evidence it needed (i.e., that Dajaz1 actually infringed -- criminally -- on its members' copyrights), and the RIAA had taken its sweet time responding.

Ben Sisario, over at the NY Times, has an article noting the official RIAA statement on the matter. Both Ben and the RIAA itself were kind enough to send me the full RIAA statement:

"We referred this particular site to ICE for investigation because of its long history engaging in the unauthorized distribution of copyright content prior to its commercial release. ICE conducted its own independent investigation of the site and ICE along with the Justice Department concluded that there was a basis for seizing the domain name. Rights holders and the RIAA were requested to assist law enforcement and made every attempt to do so in a complete and prompt manner. As we stated previously, we were disappointed with the decision to not seek forfeiture but we respect that this is a judgment that properly lies with the government."

For what it's worth, I also asked the RIAA if it could provide me the date on which it actually responded to ICE's questions, and I was told, politely, that the RIAA had "nothing further to add for now."

Beyond that, however, the RIAA's statement is ridiculous. First, it admits that it was the one who told ICE to seize this domain -- as had been suspected all along, but now has been admitted. At the very least, this raises significant questions about the all-too-close relationship between the federal government and the RIAA. The RIAA claims that "ICE conducted its own independent investigation," but that's clearly untrue. In both the original affidavit and the unsealed documents last week, ICE makes it clear that it relied heavily on the RIAA's statements. As we noted soon after the affidavit came out, ICE's "investigation" consisted of downloading four songs and asking Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, if they were infringing. He said yes, and that was good enough for ICE to move forward with the seizure. Of course, as we pointed out, on one of the songs, Linares had no right to speak for the artist, since it wasn't even an RIAA artist. On the other songs, it appeared that the RIAA did not check with the labels' own promotions people who had sent the tracks.

That said, the really ridiculous claim here is that the RIAA helped in a "complete and prompt manner." If that were true, then 10 months after the domain was seized, ICE wouldn't be whining to a judge that it needed to censor the blog for another two months because the RIAA wasn't responding or providing the necessary evidence. It's hard to square the RIAA's statements with the government's.

Dajaz1's lawyer, Andrew P. Bridges, however, had a few things to add, and responded, in detail, about how ICE's original claim to being able to seize the domain in the first place was clearly against what the law allows:

The owner of Dajaz1.com appreciates the fact that the United States Government, on studying the matter further with all the information the RIAA could furnish, determined that there was in fact no probable cause to seek a forfeiture of the domain it had seized and held for a year.

That exoneration, however, did not remedy the harms caused by a full year of censorship and secret proceedings — a form of “digital Guantanamo” — that knocked out an important and popular blog devoted to hip hop music and has nearly killed it.

The original seizure was unjustified. The delay was unjustified. The secrecy in extensions of the forfeiture deadlines was unjustified.

Five details are notable here.

First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement.

SEC. 2323. FORFEITURE, DESTRUCTION, AND RESTITUTION.
(a) CIVIL FORFEITURE.-
(1) PROPERTY SUBJECT TO FORFEITURE.-The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

Second, seizing a blog for linking to four songs, even allegedly infringing ones, is equivalent to seizing the printing press of the New York Times because the newspaper, in its concert calendar, refers readers to four concerts where the promoters of those concerts have failed to pay ASCAP for the performance licenses.

Third, RIAA’s grand and sweeping attacks on dajaz1.com suggest that RIAA’s powers of demonization far exceed its ability to substantiate its malicious statements with specific and credible facts.

Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.

Fifth, when discussing the secret extensions with the U.S. Attorney’s office in Los Angeles, I repeatedly asked the government attorney to inform the court that my client opposed any further extensions and asked for an opportunity to be heard. Not once did the government reveal those requests or positions to the court. The government should be embarrassed for keeping that information from the court.

This entire episode shows that neither the government nor the recording industry deserves any additional powers with new so-called “antipiracy” legislation, especially in the context where copyright law has been expanded and new anti-piracy remedies have been crafted ***16 times*** since 1982. This episode shows that the copyright establishment and the government are very much the “rogues” that deserve to be reined in.

That's a pretty meaty response, especially given the weak statement from the RIAA. All five of those points could be worthy of separate posts, delving into the details. For now, however, I'll just focus on two of the points. First, the fact that the government thinks that the use of authorized works is merely a defense to accusations of copyright infringement suggests a DOJ that is out of control with power, and completely out of touch with both the basics of the First Amendment and the Copyright clause, both of which would disagree with the government's statements here. There are already civil cases on the books, stating that claims need to take into account legitimate uses of the work before filing suit. However, in this case, it's even worse, because we're talking about a criminal issue, where (1) the presumption of innocence is supposed to be in effect and (2) for criminal infringement the behavior must be willful. As such, the fact that the tracks were authorized is not a defense, it's a key part of the question of willfulness. The government must consider that information prior to shutting down a site.

The second point is Bridge's comment about the RIAA's "power of demonization" and failure to actually deliver. This is a really important point, because it demonstrates just how much ICE and parts of the DOJ appear to be captured by this private entity with a history of hysterical overreactions. If the feds were truly independent, none of this would have happened. Instead, the feds appear to have relied heavily on what quickly became clear were... well, let's just say "misguided" claims by the RIAA. We detailed how misguided the claims were just weeks after the seizure. From the evidence shown so far, it appears that rather than admit that it screwed up, ICE and the DOJ simply went running to the RIAA again, asking for more help in getting them out of the mess they had caused. And the RIAA couldn't deliver.

It's truly amazing that ICE and the RIAA still can't even admit how wrong they were here, let alone give an apology to Dajaz1.com. I guess that would be tantamount to admitting just how badly they violated the site's free expression and due process rights.

Reader Comments

To recap:

9. Corporate Power is Protected
The industrial and business aristocracy of a fascist nation often are the ones who put the government leaders into power, creating a mutually beneficial business/government relationship and power elite.

11. Disdain for Intellectuals and the Arts
Fascist nations tend to promote and tolerate open hostility to higher education, and academia. It is not uncommon for professors and other academics to be censored or even arrested. Free expression in the arts is openly attacked, and governments often refuse to fund the arts.

12. Obsession with Crime and Punishment
Under fascist regimes, the police are given almost limitless power to enforce laws. The people are often willing to overlook police abuses and even forego civil liberties in the name of patriotism. There is often a national police force with virtually unlimited power in fascist nations.

13. Rampant Cronyism and Corruption
Fascist regimes almost always are governed by groups of friends and associates who appoint each other to government positions and use governmental power and authority to protect their friends from accountability. It is not uncommon in fascist regimes for national resources and even treasures to be appropriated or even outright stolen by government leaders.

Eh, I was called a fascist for saying that piracy was as much an economics issue as a content issue.

Being called a fascist doesn’t make you one. The comment is woefully lacking in context and is therefore meaningless. It is also off-topic. One should lick one's easily-bruised ego in private or at least in the appropriate thread (and this is not it).

Regardless, people misuse and abuse epithets all the time, both intentionally and unintentionally.

For example, Bush 43, one of the world's foremost Fascists, used to wrongly label left-leaners as Fascists. Whether it was his innate ignorance or an intentional distortion of the truth ordered by his bosses and handlers I do not know for sure. Regardless, the word was misapplied.

Still, the term is in no way devalued or incorrectly applied in other contexts simply because an ignorant person used it wrongly.

Re:

Fascism, at its most fundamental, is an excessive imposition of orders through legal and extralegal means. I am well aware of how badly that term is, when applied to an individual who does not believe those ideals.

And as for your remark on Bush Jr...that's actually pretty accurate of the so-called "pundits" that define political commentary in the US, especially Limbaugh, Hannity and company.

Re: Re:

Wow, I am shocked that TechDirt commenters fail to see the same kind of actions from the left as they are so quick to point out from the right.

BO has increased the Debt faster than Bush did. Has added more powers to the Homeland Security fiasco than Bush did. Passed Healthcare legislation that will cost $39k plus per person covered more than twice what was stated.

Oh, man I am not going to do this. I am not going to spend hours listing all of what Bush Jr did and compare it to BO.

So all I am going to say is if you think BO is better than Bush Jr. than you are woefully lacking in accurate, unbiased knowledge.

One last comment. BO is as influenced by his handlers (different flavor, same ice cream) as Bush Jr. was. BO is responsible for the economy 3.5 years in, stop blaming Bush Jr.

Re: Re: Re:

BO has increased the Debt faster than Bush did.

I have problems with Obama, but this statement is factually false.

What Obama did was to take the war debt that Bush racked up but left off the books and put it on the books. Under Bush, it didn't count as part of the "debt" even though it was. Obama just made the account more honest in this regard, but it wasn't debt Obama racked up.

If you discount this portion, Obama isn't anywhere near Bush in terms of debt production.

Re: Re: Re:

I'm not blaming Bush Jr. for everything: rather I was pointing the finger at people who kept cheering on fascist ideals whilst screaming "small Government!" I know that Obama is more influenced by his 'handlers' than Bush Jr. and that has led directly to increased fascistic laws.

It's very interesting to note that both Bush Jr. and Obama have passed somewhat fascist laws: however, one covered isolationism, and the other covered militarism.

Re: Re: To recap:

Re: To recap:

+1

Eventually this Country will go to a Revolution.It won't last and it is just like any other Nation and /or Empire that lasted a while and then went into a decline and then died out.
They all have.Greece,Rome,French Empire, the British Empire, the Russian Czars, and on and on the list goes.
Washington is turning this Nation into a real Police State.
Or maybe it is some type of Fascism like those items on the list.

Re: Re: To recap:

Ancient Greece simply collapsed in on itself and Alexander's empire fell into differing, sometimes warring states given how it was divided up after his death.
One might say Ancient Rome just wore itself out. At least the Western Empire did. The Eastern Empire (Byzantium) continued on for 1000 years after Rome fell.
The French Revolution had little or nothing to do with shedding Empire it was a led by idealists and quickly descended into a crazed blood bath.
Republican France never has lost its taste for Empire. While their colonial empire, as did the British, became unaffordable after two world wars drained their treasuries there wasn't much in the way of revolution in the disappearance of either except in the colonies that sensed that they could rebel and revolt.
Tsarist Russia fell victim to a revolution aided by Germany. It was certainly ripe for it though. Lenin and Stalin then set up a fascist state as defined by the list discussed elsewhere in this thread; proving that fascism exists in states both left and right -- nominally capitalist or Marxist or socialist or mercantile.
Should Canada and/or the United States go or drift into revolution it would be interesting. Neither are nation states by the classic definition both are multi-national immigrant empires where the aboriginal peoples have been displaced and marginalized in those empires.
Civilizations rise and fall, empires rise and fall. Such is the nature of these things. Revolutions almost always fail in imperial structures like Canada and the United States if they are carried out for "higher" ideals such as those that motivated the leaders of the American Revolution though all succeed in the break up of that kind of Empire.
Some will be fascist as described on the list. Some will be democracies in the congressional or Westminster sense, one or two may become monarchies, some dictatorships and some will.....
"Meet the new boss, same as the old boss!"

First point I would like to make...

Mike, this article (whether you intended it to or not) links to the discussion in your last article (http://www.techdirt.com/articles/20120503/13211218765/if-you-think-cost-piracy-is-high-what-about-c ost-enforcement.shtml).

But it seems to add a new element to my thoughts. Not only is it a case of the MORONS (Media Outlet Representative OrganizatioNS) outsourcing the cost of there business model but it also seems that I.C.E. is also doing like a lot of government agencies, wanting others to do their job.

My last point before I go get sick is why is there not a way to receive recompense from both I.C.E. and RIAA for the loss of income? I can sue a police department for beating me after I made a vulgar gesture to a police officer. I can sue a police department for leaking information that turns out to be untrue and causes me great hardship. But in a case where the federal government is concerned they are faultless and therefore legally exempt from suits. This to me is the ultimate proof that our government is operating on the failed assumption that they are above the law.

Maybe Dajaz1.com should hire Travolta's lawyer and sue both for Malicious Prosecution.

Re: First point I would like to make...

Your comment is basically what I've been saying on Techdirt for a long time over and over (and wanted to say on this post as well) and eventually stopped because I got tired of saying it over and over again. Marked as insightful.

The truly disgusting part of all this is that our system of (in)justice allows the government-industrial complex to disregard the rights of normal citizens and of the poor and to ignore laws and morality with virtual impunity. Yet if someone does absolutely nothing morally wrong by infringing on the copy protection privileges of the rich they could get sued into the ground, investigated by our government at the discretion of industry, and fined for insane amounts of money.

Re:

That is the main question I came here to ask. The gov and RIAA seriously needs to learn that these kinds of actions are not tolerable. If there was an actual semblance of justice, all in ICE who simply took the RIAA's words for this would be fired immediately with large black marks on their records.

Please tell me that dajaz1 can sue them. I want to believe that justice is obtainable for us common folk.

Suing the Government

There is a process by which the Federal Government may be sued. It requires application to a Federal Court and the approval of the Judge therein. It even happens on rare occasion. Hopefully someone from Dajaz1 will make such application and it will be approved. If not, this country is in really deep trouble.

Re:

So I'm curious, what is dajaz1's course of action at this point? Do they get to bring a suit against the DoJ, ICE, and/or RIAA?

They *could* but it's pretty expensive to sue the gov't, for a very low likelihood of winning anything meaningful. I don't know what they're going to do, but I wouldn't be surprised if the answer is nothing, just for the sake of actually focusing on trying to rebuild their site after a year-long hiatus.

Re: Re:

Maybe the EFF could help them?

Regardless of the actual reward, someone, somewhere, at sometime needs to sue because if there is no consequence for doing the wrong thing then the gov't will feel no need to stop their actions no matter how unfounded or unwarranted.

Thought experiment: If I know that the worst that will happen to me is a $10,000 fine and 1 year in jail for stealing 50,000 people's identities and making 10 dollars on each then I understand good economic principals. Because I made $490,000 for one year of my life. Not bad pay if you can get it.

Worst than that is if I know that I can get paid for doing nothing while harming (costing a lot money) another entity and there is zero consequence. Which is what I.C.E. views this whole case as being.

Re: Re: Re:

Question - In such a case, where you make 490K through criminal actions, wouldn't that amount be seized, taken away from you, and then the 10K fine is put on top of that? Because last I heard, if you're found guilty of obtaining money illegally, you don't get to keep the money.

Re: Re: Re: Re:

They have to prove to made that much was made which they are simply not equipped to do.

The average ID scam investigation nets money and facts but very little to show how much.

My statement was based on information I have from a 20k user breach that was not reported and therefore I can not provide details. But it did happen and I did clean it up, but I can only say that the victims lost on average $10.

Re: Re:

What about the RIAA??? Certainly they have some liability in this worthy of them being sued. Hell, they were the ones that instigated the whole process! It kills me that this is not getting the kind of MSM attention it should

Re: Re:

The abuses in this case are obvious. It is important to explain them, but what is more important is whether they can be stopped.

It seems to me that the outraged recitation of wrongs is becoming pointless, as they are just piling up. At some point we have to conclude that this is the new normal and there is no more rule of law.

If the victims cannot get any reforms or recompense when government illegalities are routine, egregious and increasing, there is no point appealing to law anymore, and the people need to start looking at replacing the system of government.

Re: Re:

I think the death penalty inclusion was an extreme parody. The shills' usual line is that since enforcement is never 100% accurate we should do away with enforcement, in an attempt to portray all people against the RIAA as anarchist.

But it was the "you want the industry to also be accountable?" and "If those models worked you'd be paying for the content you consumed instead of pirating it" that gave it away.

Re:

Stunning indeed

Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.

Yeah, I have to agree with him, this is a pretty chilling admission. This is very close to saying "lack of law breaking" need not be taken into account before performing an arrest.

Govt: "We're taking your stuff because you broke the law."

dajaz1: "Actually, we had permission to share those files as a promotion."

Re: Stunning indeed

Right. It basically makes the entire Internet subject to seizure, because it all has copyrighted content on it, and apparently you don't get to point out that it's licensed (or, in fact, you are the rightsholder) until afterwards...

Who is to blame?

It's pretty clear to me, and has been for sometime, that dajaz1.com has been seriously wronged. I'm glad that some light is finally being shed on the matter. I really do wonder how many individuals were involved in this entire fiasco.

This post talks about "the government" and the various organizations as a whole overreaching themselves and acting outside the law. At what point are bureaucrats no longer able to shelter themselves behind the guise of office? Will it come down to a few corrupt individuals being thrown under the bus, or with the entire system manipulated in an unjust manner come under scrutiny? I'm really not sure which I would prefer at this point.

Re: Who is to blame?

Jeremy, That is a great point!

Generally, we look to these kinds of offenses as a problem with the gov't. But there are individuals behind these actions and they need to be held accountable for their actions. Just as a police officer would be held accountable for beating a person that did nothing.

Voted Insightful even though I know that your comment will not be seen in the proper light it should be.

So...Reading between the lines, the RIAA's "evidence" of infringement consists mainly of "'Cuz we said so", then when asked for substantiation, all you hear is the chirping of crickets. Is that about right?

no legal remedies?

If I swear out a complaint about my neighbor being a drug dealer or bank robber or some other criminal, and the police arrest him, he can sue me for defamation of character.

Isn't there anything similar here? SOMEBODY, somewhere at the RIAA had to be the one to say "They did an awful thing officer, lock 'em up!". That person is liable for their actions.

Yes, I know it will be a low-level peon. Yes, I know s/he was 'just following orders'. But it might make it a little harder to hire peons if a side effect to employment is a long, painful, expensive lawsuit.

Bottom line - the RIAA lied, dajaz1 business and reputation got hurt as a consequence. Isn't that actionable?

First off, I agree it's good (although not exactly a surprise) to see dajaz1's lawyers making more detailed public statements about the case than the government or RIAA has done. But this point is just dumb:"First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement."

Bridges is a smart lawyer, so it's disappointing to see him attempt to raise this rather ridiculous argument in the court of public opinion. Because it sure wouldn't fly in an actual court. The authority for seizing and forfeiting property to which Bridges refers (Section 2323) says that "the following property is subject to forfeiture to the United States Government," and then lists:
"(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title."
Followed by:
"(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A)."

The issue here isn't whether the forfeiture statute applies to property used to commit copyright crimes - it does - it's whether copyright crimes were actually being committed. If Mr. Bridges thinks the forfeiture statute is too broad, then he's welcome to complain about it and challenge it. But it's silly for Bridges to try to parse the statute in a way that makes no sense.

I'm irked when RIAA says ridiculous things about this case, but it's not like it makes me feel better to have the other side do it too. Mr. Bridges and his team have lots of good arguments. They should stick to those, and leave the frivolous claims to others.

Re:

The issue here isn't whether the forfeiture statute applies to property used to commit copyright crimes

I think his argument was that the property being seized, the domain name, is not property at all under the law. He wasn't arguing about whether the property was being used to commit copyright infringement in this part.

That said, it did seem like a bit of a stretch in any case, but certainly no greater of a stretch than I see regularly done by lawyers in general and media corporation lawyer in particular.

Re: Re:

Bridges wasn't actually saying that a domain name isn't property. You may be right that that's what he meant, but if so, he's just wrong. (It's a interesting idea, but there's plenty of case law and statutes that discuss property interests in domain names. That ship has sailed.) What I was suggesting was ridiculous was that Bridges was making this (I think frivolous) point before and instead of his much better argument, which that dajaz1 and its domain were not being used to commit crimes.

And you're right, too, that this is no worse than the hyperbole we see from lots of other lawyers, media corporation lawyers or not. But it's disappointing to see this guy acting no better than those other guys.

It is a defense, but not an affirmative defense

"the fact that the tracks were authorized is not a defense"

I am not a lawyer, but I think this is a defense. Anything which asserts that a key element is missing is an example of a defense.

I do not think it would be an *affirmative defense* though. An affirmative defense involves showing that the prohibited act did occurr, but that there is either a justification or excuse for it. Self defense is the classic case of affirmative defense. I think authorization distrubtion is fully permitted so authorization would mean that there was no prohibited action, not that there was an excuse or justification.

Again, I am not a lawyer but I think the difference is significant because of how they are treated. With an affirmative defense the burden of proof can be shifted to the defendant, for one thing.

"Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning."

Suing the RIAA

I hope one of these victims takes a note from the Righthaven playbook and actually pursues the RIAA. There may be a claim for tortious interference (punitive damages) and other wrongs. The discovery would certainly be interesting and I would bet there are many an email from RIAA personnel encouraging the seizure and promising to provide the "evidence".